IN THE HIGH COURT OF KERALA AT ERNAKULAM SA.No. 546 of 1999(F)

1. KALLIANI

... Petitioner

Vs

1. SAROJINI

... Respondent

For Petitioner :SRI.N.P.SAMUEL

For Respondent :SRI.K.S.MENON

The Hon'ble MR. Justice P.BHAVADASAN

Dated :16/02/2011

O R D E R

P. BHAVADASAN, J.

- - - - - - - - - - - - - - - - - - - - - - - - - - - S.A. No. 546 of 1999

- - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 16th day of February, 2011. JUDGMENT

The plaintiff in O.S. 2841 of 1987 before the Munsiff's Court, Irinjalakuda is the appellant. The appellant died during the pendency of the Second Appeal and her legal heir was brought on the party array as additional second appellant.

2. The suit was one for partition of four items of properties. Lakshmy and Chathukutty had three children, namely, Kalliani, the first plaintiff, Narayani, the fourth defendant and Velayudhan, who is no more. His legal heirs are defendants 1 to 3. As per the plaint allegation, item No.1 belonged to Lakshmy and item No.2 to Chathukutty, who obtained it under Ext.A2 partition deed. Item Nos.3 and 4, according to the plaintiff, were taken by Chathukutty on oral lease. On the basis of these allegations, the plaintiff filed the suit claiming 1/3rd share over the suit property.  S.A.546/1999. 2

3. The defendants resisted the suit. As regards item No.1, it was conceded that it was not acquired by Lakshmy. As regards item No.2 is concerned, Chathukutty had mortgaged the property and Velayudhan, the predeceased son of Chathukutty redeemed the property and therefore the plaintiff had no manner of right. Items 3 and 4 were acquired by Velayudhan and the plaintiff has no manner of right over the same. Finally it was contended that even assuming that the plaintiff had any manner of right, the same had been lost by adverse possession and limitation.

4. On the basis of the above pleadings, issues were raised by the trial court. The evidence consists of the testimony of P.Ws.1 to 3 and documents marked as Exts.A1 to A5 from the side of the plaintiff. Defendants examined D.Ws. 1 to 3 and had Exts.B1 to B8 marked. Ext.X1 is the third party exhibit.

5. The trial court on an evaluation of the evidence found that even assuming that the plaintiff had any manner  S.A.546/1999. 3

of right, the same had been lost by adverse possession and limitation and dismissed the suit.

6. The plaintiff carried the matter in appeal as A.S.95 of 1990. The appellate court found that the plaintiff is entitled to 1/3rd share in item Nos. 1 and 2. As regards item Nos. 3 and 4, the lower appellate court found that they were the self acquisitions of Velayudhan. However partition was declined as regards item Nos. 1 and 2 on the ground that the right of the plaintiff has been lost by adverse possession and limitation. The said judgment and decree are assailed in this appeal.

7. Notice is seen issued on the following questions of law:

"(a) Will making improvements by one co- owner in the co-ownership property and long silence of other co-owners in demanding partition and non-participation of the other co-owners in the income of the property for long establish ouster which alone will disentitle a sharer from claiming partition? In the absence of evidence of asserting any hostile title by defendants 1 to 3  S.A.546/1999. 4

regarding items 1 and 2 and ousting the plaintiff from joint possession of the co-ownership property, were the courts below correct in finding that the plaintiff lost her right by adverse possession and ouster?

(b) Should not there be clear pleading and proof for establishing ouster? Going by this rigorous test, can it be said that the defendants have proved adverse possession and ouster? ) When two daughters were given in

marriage and when the son was living with the father, obtaining purchase certificate regarding item Nos. 3 and 4 in the name of the sole son will prove an oral lease in favour of the son? Will not a purchase certificate obtained by a co-owner enures to the benefit of other co-owners?"

8. Learned counsel appearing for the appellant pointed out that the courts below were not justified in holding that the right, if any of the plaintiff, has been lost by adverse possession and limitation. Learned counsel pointed out that merely because Velayudhan had been in continuous possession of the property or taking income therefrom is not sufficient to constitute ouster and cannot be said to be in  S.A.546/1999. 5

derogation of the rights of the co-owners. There has to be clinching evidence, according to learned counsel, to show that the other co-owners have been kept out of possession to their knowledge and the person who claims adverse possession has been in exclusive possession and enjoyment of the property in derogation of the rights of others. There is no such pleading in the case on hand. Learned counsel for the appellant for the above proposition relied on the decision reported in Mohd. Mohammad Ali v. Jagadish Kalita ((2004) 1 SCC 271). It was contended that the courts below have erred in coming to the conclusion that the plaintiff's right is lost by adverse possession and limitation.

9. Per contra, learned counsel appearing for the contesting respondents pointed out that after the death of Chathukutty and Lakshmy, no claim whatsoever was made by the so-called other co-owners till the suit was instituted in the year 1987. Velayudhan had obtained assignment of mortgage of item No.2 and had obtained purchase certificate also in respect of the property. There is nothing  S.A.546/1999. 6

to show, according to learned counsel, that the other sharers had ever shared any income from the property at any point of time or exercised any act of possession over the property. Therefore, it is contended that the courts below were justified in holding that the right of the plaintiff is lost by adverse possession and limitation.

10. Learned counsel for the respondents also drew the attention of this court to the fact that the pleading in the plaint was that Lakshmy died in 1956 and Chathukutty in 1959. But the lower appellate court goes on to hold that Cochin Makkathayam Theyya Act is applicable in the case on hand since Lakshmy died in 1953 and held that the plaintiff is entitled to 1/3rd share. This was going beyond the scope of the suit and that cannot enure to the benefit of the plaintiff. In support of the above proposition, learned counsel relied on the decision reported in Vinod Kumar v. Surjit Kaur (AIR 1987 SC 2179).

11. Now we are concerned with item Nos. 1 and 2. Both the courts below have found that item Nos. 3 and 4 are  S.A.546/1999. 7

self acquisitions of Velayudhan and he had obtained purchase certificate in respect of the same. This court is not forgetting that as far as item Nos.3 and 4 are concerned, Chathukutty and Velayudhan had jointly obtained oral lease from the jenmy tarwad and later Chathukutty had sold his share. This was accepted by both the courts and what was left was only the share of deceased Velayudhan. Being a question of fact, no interference is called for.

12. However the position is different as regards item Nos. 1 and 2 are concerned. Item No.1 admittedly belonged to Lakshmy, who had obtained it under Ext.A1 document. As regards item No.2, the only contention was that it was mortgaged by Chathukutty and Velayudhan had purchased the rights of the mortgagee. Therefore, the title of Chathukutty is concluded. The lower appellate court found that both item Nos. 1 and 2 are partible and the plaintiff is entitled to 1/3rd share over the same.

13. The next question that arises for consideration is whether the finding of the courts below that the claim with  S.A.546/1999. 8

regard to item Nos.1 and 2 is barred by adverse possession and limitation. The law regarding the plea of adverse possession among co-owners is well settled. The plea of adverse possession and limitation is not readily accepted. Strict proof is necessary to show ouster of other co-owners to their knowledge. In the decision reported in Govindammal v. R. Perumal Chettiar (AIR 2007 SC 204), the court held as follows:

"No hard and fast rule can be laid down from which it can be inferred that any co-sharer has ousted his co-sharer. That will depend upon facts of each case. Simply long possession is not a factor to oust a co-sharer but something more positive is required to be done. There must be a hostile open possession denial and repudiation of the rights of other co-owners and this denial or repudiation must bring home to the co-owners. Thus, where the plaintiff was legally wedded wife of deceased ancestor of parties, she would automatically entitled to claim her share in the property by way of survivorship and just because a notice was issued by her to her stepsons and she  S.A.546/1999. 9

did not pursue the same or did not file suit at the time that does not extinguish the claim of the plaintiff by adverse possession."

14. In the decision reported in Deva v. Sajjan Kumar (2003 SCW 4501) it was held as follows: "The animus to hold the land adversely to the title of the true owner can be said to have started only when the defendant derived knowledge that his possession over the suit land had been alleged to be an act of encroachment on plaintiff's survey number. Mere long possession of defendant for a period of more than 12 years without intention to possess the suit land adversely to the title of the plaintiff and to latter's knowledge cannot result in acquisition of title by the defendant to the encroached suit land. thus in the present case, defendant in his deposition admitting that the dispute of encroachment concerning suit portion came to his knowledge only after filing of the suit and the said deposition negatives the defendant's case of having prescribed title by adverse possession. Further plaintiff's suit is not merely based on his prior possession and subsequent dispossession but also  S.A.546/1999. 10

on the basis of his title and the limitation for such a suit is governed by Art.65 of the Limitation Act of 1963. The plaintiff's title over the encroached land could not get extinguished unless the defendant had prescribed title by remaining in adverse possession for a continuous period of 12 years."

15. In the decision reported in Darshan Singh v. Gujjar Sigh (AIR 2002 SC 606) it was held as follows: "In our view, the correct legal position is that possession of a property belonging to several co-sharers by one co-sharer shall be deemed that he possess the property on behalf of the other co-sharers unless there has been a clear ouster by denying the title of other co-sharers and mutation in the revenue record in the name of one co-sharer would not amount to ouster unless there is a clear declaration that title of other co-sharers was denied."

16. In the decision reported in M. Arthur Paul Rana Raju v. Gudese Garaline Augusta Bhushanabai (AIR 1999 SC 2633) it was held as follows:  S.A.546/1999. 11

"Defendants 2 to 7 being the co-sharers cannot succeed in claiming absolute title by adverse possession unless it is established by convincing evidence that there had been ouster of the respondent No.1, an admitted co-sharer from the disputed property. In the case of a co-sharers mere exercise of possession as of right, cannot make out a case of ouster of co-sharer and consequential exercise of adverse possession by the other co-sharer so that ultimately the title of the ouster co-sharer is extinguished on account of adverse possession for the prescribed period. In the facts and circumstances of the case the Court of Appeal below has rightly indicated that such case has not been established by the appellants and the LPA has also been dismissed. Therefore, the appellant cannot succeed in this appeal. The question whether the will was a genuine or not has also been answered against the appellant and we do not find any reason to interfere with such finding made by the single Bench of the High Court since upheld by the Division Bench. It may be stated here that whether the will is valid or not looses its significance because plaintiff's title through  S.A.546/1999. 12

Karunama even by intestate succession has been established. The present defendants have no concern with the will and title to the property by Karunamma by testamentary succession through the will concerns the natural heirs of Karunamma and the legatees under the will."

17. The evidence in this case consists of the testimony of D.Ws. 1 to 3 on behalf of the defendants, who set up a plea of adverse possession and limitation. It is true that D.W.1 says that the plaintiff and the fourth defendant have not received any income and that Velayudhan had been in absolute possession and enjoyment of the same. It is also stated that Velayudhan had obtained purchase certificate in respect of these properties.

18. The question is whether the above elements by themselves are sufficient to constitute adverse possession and limitation. Mere possession, however long it may be, does not amount to adverse possession. So is the case of non-sharing of income by the co-owners. There is  S.A.546/1999. 13

also a contention by the contesting defendants that various improvements were effected in the property. The improvements so effected can be treated as an act committed by one of the co-owners and that cannot be taken to be in derogation of the rights of the other co-owners. There is no evidence at all to show that at any point of time Velayudhan or his successors in interest had made it explicitly clear that they are holding the property in derogation of the rights of others. The classic definition of adverse possession is nec vi, nec clam, nec precario. As already noticed, may be that there is no evidence of sharing of income and may be that purchase certificate has also been obtained in the name of Velayudhan. This court has occasion to hold that purchase certificate obtained by one of the co-owners enures to the benefit of other co-owners. These aspects have been omitted to be noticed by the courts below. The courts below were carried away by the fact that Velayudhan and his successors in interest have been taking income from the property and had made  S.A.546/1999. 14

improvements therein. Even assuming all this to be true, that by themselves are insufficient to constitute adverse possession and limitation. It is well settled that for a claim of adverse possession by co-owner, his possession has to be in derogation of the other co-owners and there has to be clear evidence to show ouster of other co-owners. Such evidence is wanting in the case on hand.

19. The contention based on the plea regarding the date of death of Lakshmy has not much relevance in the case on hand. The question as to whether Lakshmy died in 1953 or 1956 had little significance. If she died in 1953 Cochin Makkathayam Theyya Act applies and if it is in 1956, Hindu Succession Act applies. Either way the plaintiff is entitled to 1/3rd share in the property left behind by Lakshmy. So that this has not much relevance in the context.

20. For the above reasons, this court is unable to accept the finding of the courts below that the claim of 1/3rd  S.A.546/1999. 15

share by the plaintiff over item Nos.1 and 2 is barred by adverse possession and limitation.

In the result, this appeal is allowed and the judgments and decrees of the courts below are set aside and a preliminary decree is passed in the following terms: i) Item Nos. 1 and 2 shall be divided into three equal shares and one such share shall be given to the plaintiff.

ii) Since there is no evidence regarding the actual quantum of income derived from the suit property, no mesne profits is awarded.

iii) Either of the parties may move for passing of the final decree. The suit shall stand adjourned sine die. P. BHAVADASAN,

JUDGE

sb.